Texas Tees Up A Nationwide Abortion Showdown

For many Texas Republicans the regular session was a letdown, because it came and went without a bill targeting abortion medication passing. But, another opportunity presented itself with two special sessions. And in the second, Texas Republicans passed a sweeping bill that targets abortion pills, and all it needs is Governor Abbott’s signature before it goes into effect in December.

Just a few weeks ago, House Bill 7 passed both the Texas House and Senate. The bill would allow private citizens to sue health care providers or manufacturers who mail or prescribe abortion medication to Texans. Under HB 7, any successful lawsuit against an abortion provider or manufacturer can net a plaintiff up to $100,000. However, if a plaintiff is not related to the recipient of the medication, they would be capped at receiving $10,000 (the rest would go to charity). 

By passing HB 7, Texas Republicans can make receiving abortion medication even harder for Texans, while also directly targeting blue state shield laws (meant to protect abortion providers). The number of abortions occurring in the United States has actually increased in the years since Roe v. Wade was overturned. That’s in large part due to greater access to abortion medication. The Guttmacher Institute released a triannual report showing medication abortion accounted for 63 percent of all abortions in the United States in 2023, an increase from 53 percent three years earlier. 

While Texas has been under multiple abortion bans since September 2021, patients needing abortion care could still turn to health or telemedicine companies for medication. And there are currently 22 states that have adopted shield laws, which are meant to protect abortion providers from civil or criminal lawsuits (even if they are providing medication to patients in states like Texas). 

So naturally a law like HB 7 was the next step in the evolution for anti-abortion lawmakers. According to Jessica Waters, a Senior Scholar in Residence at American University and an expert in reproductive and constitutional law, the bill was entirely predictable. In an interview with Texas Signal, Waters said that in the weeks after Roe was overturned, many leading pundits erroneously claimed the decision was just sending abortion back to the states. “This Texas bill and other efforts we are seeing really belie that, the goal was always to restrict or ban abortion nationwide,” said Waters.

HB 7 is another avenue for abortion opponents to go after the lawful activities of blue states. This year has also seen multiple lawsuits against blue state abortion providers. Many of the lawsuits, including a federal lawsuit filed against a California provider, have been spearheaded by former Texas Solicitor General Jonathan Mitchell, the architect of Senate Bill 8, the near-total abortion ban that went into effect in September 2021. Mitchell was also counseled in the crafting of HB 7.

Eroding or fully ending shield laws is clearly a goal for Texas Republicans. Texas Attorney General Ken Paxton recently announced his office asked to join a lawsuit with other red states that are suing the FDA over the approval of mifepristone, one of two drugs used in an abortion medication. While this lawsuit was tossed by the Supreme Court in 2024 for lacking standing, it was resuscitated by the same District Court Judge Matthew Kacsmaryk from Amarillo. 

“We have to be very clear that what we are seeing in Texas is part of a national plan to restrict access to abortion care nationwide, and it’s deliberate,” notes Waters. “The right is very good at this playbook and doing it step by step.”

For now, blue states with shield laws are trying to shore up protections. The California legislature recently passed a bill that would allow medical providers to send medication abortion with limited information. That could potentially hamstring any lawsuits from a state like Texas. Additionally, New York Attorney General Letitia James recently said she was stepping in to intervene in a lawsuit brought forth by Ken Paxton against a New York medical provider that allegedly shipped abortion medication to a woman in Texas.

“Texas has no authority in New York, and no power to impose its cruel abortion ban here,” said James in a statement. “Our shield law exists to protect New Yorkers from out-of-state extremists, and New York will always stand strong as a safe haven for health care and freedom of choice.”